Ex Parte Smith

Patent Trial and Appeal Board

Feb 23, 2017

13428835 (P.T.A.B. Feb. 23, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/428,835 03/23/2012 Peter A. Smith 191398 3546
38598 7590 02/27/2017
ANDREWS KURTH KENYON LLP
13501 STREET, N.W.
SUITE 1100
WASHINGTON, DC 20005
EXAMINER
MCINNISH, KEVIN K
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
02/27/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
DCIPDOCKETING@ andrewskurth.com
PTODC @ andre wskurth .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER A. SMITH
Appeal 2016-004402
Application 13/428,8351
Technology Center 2400
Before HUNG H. BUI, SHARON FENICK, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—5 and 7—19, which constitute all of the pending claims in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies the real party in interest as Northrop Grumman
Systems Corporation. App. Br. 1.
Appeal 2016-004402
Application 13/428,835
Introduction
Appellant identifies there is a need for “a system that captures iris
images while the person is in motion and at a substantial distance from a
sensor.” Spec. 1:14—15. Claim 1 is representative:2
1. A pre-processor imaging system for remotely
capturing iris images, comprising:
at least one field camera that observes a target individual;
tracking software- that receives and processes an output
from the field camera and determines a current eye location and
head-pose data based on the processed output;
a pre-processor that receives the current eye location and
head-pose data and uses predictive head and eye tracking
algorithms to identify a maximal opportunity window for iris-
capture based on the current eye location and head-pose data;
and
an iris imaging system including at least one zoom
camera for capturing one or more iris images of the target
individual within the maximal opportunity window based on
input received from the pre-processor and the tracking software;
wherein the head-pose data provides head movement
pattern data, and wherein the pre-processor uses video imagery
from the field camera and head and eye movement behavioral
characteristics to identify the maximal opportunity window for
iris-capture; and
wherein the head and eye movement behavioral
characteristics are obtained by analyzing facial features and the
head movement pattern data using the predictive head and eye
tracking algorithms.
App. Br. Claims App’x i.
2 Appellant presents no arguments for the patentability of claims 2—5 and 7—
19 that are substantively different from the arguments presented for claim 1.
See App. Br. 4—12.
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Application 13/428,835
References and Rejections
(1) Claims 1, 2, 4, 5, and 7—19 stand under 35 U.S.C. § 103(a) as
unpatentable in view of Hanna et al. (US 6,714,665 Bl; Mar. 30, 2004) and
Ren et al. (US 2010/0202667 Al; Aug. 12, 2010). Final Act. 6-12.3
(2) Claim 3 stands rejected under 35 U.S.C. § 103(a) as
unpatentable in view of Hanna, Ren, and Larsson et al. (US 2005/0073136
Al; Apr. 7, 2005). Final Act. 12.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
contentions of reversible error. We disagree with Appellant’s conclusions.
We adopt the Examiner’s findings and reasons as set forth in the Final
Rejection from which this appeal is taken and as set forth in the Answer.
We highlight the following for emphasis.
Maximal Opportunity Window for Iris-Capture
In rejecting claim 1, the Examiner relies on Ren for teaching or
suggesting the requirement to use “predictive head and eye tracking
algorithms to identify a maximal opportunity window for iris-capture based
on the current eye location and head-pose data.” Final Act. 6—7 (citing Ren
131). Appellant argues the Examiner errs because
Ren does not disclose or even contemplate identifying a
maximal opportunity window for high-resolution iris-capture,
but instead discloses that it will “capture a blurred visual image
3 In a post-Final Action Amendment dated June 11, 2015, Appellant
amended claim 1 to incorporate the requirements of then-pending claims 5
and 6 into claim 1 (the “wherein” clauses of representative claim 1 shown
supra are the requirements added to claim 1 by that amendment). In an
Advisory Action dated July 21, 2015, the Examiner entered the amendment
and maintained the rejection based on the prior record.
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Application 13/428,835
of an iris” and then digitally unblur the “blurred visual image []
based on a distribution of eye image gradients in an
empirically-collected sample of eye images.” (Ren, 10008).
App. Br. 6 (brackets by Appellant) (further arguing Ren does not teach or
suggest the claimed use of predictive head and eye tracking algorithms).
Appellant further contends the Examiner’s interpretation of “maximal
opportunity window for iris-capture” as claimed is unreasonable because
“[ajcting as his own lexicographer, the inventor provided a definition of this
term that a skilled person would readily comprehend.” Reply Br. 2.
Appellant contends, based on the Specification, an ordinarily skilled artisan
would understand “maximal opportunity window for iris-capture,” as
recited, “seeks the right moment in which to drive the zoom camera 204 to
obtain a close-up high-resolution image of the target’s eyes, and thereby
capture the iris in sufficient detail to determine his or her identity.” Id. at 3
(further stating “Ren does not use either the claimed phrase or individual
terms of ‘maximal opportunity window.’).
Appellant does not persuade us. During prosecution, claim terms are
given their broadest reasonable interpretation in light of the Specification.
In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997). Under the broadest
reasonable interpretation, claim terms are given their ordinary and
customary meaning, as would be understood by one of ordinary skill in the
art in the context of the entire disclosure. In re Translogic Tech., Inc.,
504 F.3d 1249, 1257 (Fed. Cir. 2007). “To act as its own lexicographer, a
patentee must ‘clearly set forth a definition of the disputed claim term’ other
than its plain and ordinary meaning.” Thorner v. Sony Computer Entm’t Am.
LLC, 669 F.3d 1362, 1365-66 (Fed. Cir. 2012).
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Application 13/428,835
Contrary to Appellant’s contention, the Specification does not define
the term “maximal opportunity window” so as to limit or change its plain
and ordinary meaning. Rather, Appellant’s Specification generally describes
the term “maximal opportunity window” in a non-limiting fashion, such as
an optimal opportunity window or an optimal downstream iris capture
opportunity. Spec. 2:5—6, 21—22. Furthermore, it is immaterial that Ren
does not recite verbatim the wording “maximal,” “opportunity,” and
“window.” The crux is the substance of what Ren teaches or suggests to an
ordinarily skilled artisan. As the Examiner finds, Ren’s disclosure of real­
time face detection and image capture of an iris of a moving subject (131)
teaches or suggests using predictive algorithms for identifying “a maximal
opportunity window for iris-capture,” as recited. See Final Act. 5—6; Ans.
3—4, 15.
Teaching Away
Appellant argues “Hanna expressly teaches away from using the
claimed predictive head and eye tracking algorithms” because “Hanna only
discloses embodiments requiring a cooperative individual willing to keep his
or her head still and look at a target” and that by “requir[ing] a user to look
at a target, Hanna expressly teaches away from using predictive algorithms
to identify a maximal opportunity window for iris-capture.” App. Br. 7
(citing Hanna 17:2—34) (additionally contending Ren’s description of
predicting eye location for a moving subject fails to “remedy this
deficiency” (citing 131)).
This argument is unpersuasive. A teaching away requires a reference
to actually criticize, discredit, or otherwise discourage the claimed solution.
See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). That “inventions
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Application 13/428,835
were designed to resolve different problems, however, is insufficient to
demonstrate that one invention teaches away from another.” Natl Steel Car,
Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004).
The teachings of Hanna highlighted by Appellant do not criticize,
discredit, or otherwise discourage consideration of incorporating Ren’s
teachings regarding a “maximal opportunity window for iris-capture”
(discussed supra), and on that basis do not rise to the level of teaching away
from the combination. Moreover, we agree with the Examiner that Hanna’s
discussion of prompting a user “to look at a target which will place her eyes
in a better position to be imaged” when an attempt to identify eyes in a
captured image fails (Hanna 21:12—28) would, instead, encourage an
ordinarily skilled artisan to seek out ways to improve the image capture,
which to that end would include consideration of incorporating Ren’s
teachings. Ans. 17. We find the Examiner sufficiently articulates reasoning
with rational underpinning to support the legal conclusion of obviousness.
KSRIntl Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). We further note
Appellant provides no convincing argument or evidence that combining the
teachings of Hanna and Ren as set forth by the Examiner was “uniquely
challenging or difficult for one of ordinary skill in the art.” See Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 419).
Head and Eye Movement Behavioral Characteristics
Appellant also argues the Examiner errs in finding Hanna and Ren
teach claim 1 ’s requirement for obtaining “head and eye movement
behavioral characteristics,” as recited, contending “Hanna merely discloses
identifying potential classified face regions at a given point in time” and
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Application 13/428,835
“Ren merely describes that a ‘next eye location for the moving subject may
be predicted accurately in real time. . . App. Br. 11 (citing Hanna 17:2—
34, Ren 131).
The Examiner responds that Hanna’s disclosure of detecting blinking
and Ren’s disclosure of determining the direction of head movement both
teach the recited “movement behavioral characteristics” according to the
plain and ordinary meaning of the words in that term. Ans. 19 (quoting App.
Br. 11).
In the Reply, Appellant argues that the Specification defines “head
and eye movement behavioral characteristics” so that a skilled artisan would
understand they “are used to identify the right moment in which to drive the
zoom camera 204 to obtain a close-up high-resolution image of the target’s
eyes, and thereby capture the iris in sufficient detail to determine his or her
identity”, and as such, neither Hanna nor Ren teach the behavioral
characteristics of the disputed limitation. Reply Br. 5.4 This argument also
does not persuade us. As with the claimed “maximal opportunity window”
discussed supra, Appellant’s Specification does not limit or change the plain
and ordinary meaning of “movement behavioral characteristics.” We agree
4 Appellant states the Specification provides the “most relevant definition”
of “movement behavioral characteristics” as:
The pre-processor 212 may use video imagery from the field
camera 202 and head and eye movement behavioral
characteristics to identify the maximal opportunity window 130
for iris-capture. The head and eye movement behavioral
characteristics may be obtained by analyzing facial features and
the head movement pattern data using, for example, the
predictive head and eye tracking algorithms.
Spec. 3:23—28. Appellant is mistaken. This disclosure is not limiting and
does not provide a definition.
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Application 13/428,835
with the Examiner that Hanna and Ren both teach detecting “movement
behavioral characteristics” as recited by claim 1. See Final Act. 8, Ans. 19.
Conclusion
Accordingly, we sustain the Examiner’s rejection of claim 1.
DECISION
For the above reasons, we affirm the rejection of claims 1—5 and 7—19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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